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BR v State of Queensland (No. 2)[2022] QIRC 154

BR v State of Queensland (No. 2)[2022] QIRC 154

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

BR v State of Queensland (No. 2) [2022] QIRC 154

PARTIES: 

BR

(Appellant)

v

State of Queensland

(Respondent)

PROCEEDING:

Public Service Appeal – suspension without pay decision

DELIVERED ON:

6 May 2022

MEMBER:

HEARD AT:

Hartigan IC

On the papers

ORDER:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a suspension without pay decision – where appellant is also employed as a ride share driver – where appellant has been charged with seven indictable offences during the course of his employment as a ride share driver – where appellant suspended from duty without remuneration – where appellant submits that decision is not fair and reasonable – where appellant submits he was denied natural justice – where respondent formed a reasonable belief that the appellant is liable to discipline under a disciplinary law – where it was open on the material for the decision maker to form a reasonable belief that the appellant was liable to discipline under a disciplinary law – where appellant was not denied natural justice – where decision fair and reasonable – decision appealed against confirmed

LEGISLATION:

CASES:

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), ss 137, 187 and 194

Suspension (Directive 16/20), cls 5 and 6

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)

Mazza v Stewart (Commissioner of Police) & Anor [2017] QSC 43

Reasons for Decision

Introduction

  1. [1]
    The Appellant [(name withheld)][1]is employed by the State of Queensland [(Department name withheld)] ('the Department'), in the position of [(position title withheld)] in the [(team name withheld)] on a permanent full-time basis.
  1. [2]
    In addition to the Appellant's public sector role with the Department, the Appellant also works as a ride share driver. In October 2021, the Appellant was charged with seven indictable offences, which are alleged to have occurred during the course of his work as a ride share driver, including, but not limited to, five counts of sexual assault.
  1. [3]
    On 8 November 2021, the Appellant's then legal representatives advised the Department that he had been charged with seven indictable offences and that he had been remanded in custody. The Appellant was subsequently released from custody after being granted bail.
  1. [4]
    Following receipt of this information, the Department issued the Appellant a notice of suspension on normal remuneration pursuant to s 137(1)(a) of the Public Service Act 2008 (Qld) ('the PS Act') and a show cause notice for suspension without remuneration, on the basis that the Department held a reasonable belief that the Appellant is liable to disciplinary action pursuant to s 187(1)(b) of the PS Act.
  1. [5]
    The Appellant's then legal representatives provided a response to the show cause notice which set out a number of 'errors' with the content of the show cause notice.
  1. [6]
    By letter dated 4 February 2022, the Department determined to suspend the Appellant without normal remuneration pursuant to s 137(4) of the PS Act on the basis that, having regard to the nature of the discipline to which the Appellant is liable, it is not appropriate that he be paid normal remuneration during the period of his suspension ('the decision'). The Department confirmed that the suspension without normal remuneration would continue until 21 April 2022, at which time the Department will consider what further action will be taken in relation to the suspension.
  1. [7]
    By notice of appeal filed in the Industrial Registry on [(date withheld)], the Appellant appeals the decision, and relies on the following grounds in support of his appeal, as relevantly summarised:
  1. (a)
    any accusations made against the Appellant were not in the context of his public sector role;
  1. (b)
    there have never been any complaints filed against the Appellant in his role preceding 'this situation';
  1. (c)
    the Appellant has not been afforded the presumption of innocence; and
  1. (d)
    the Appellant has previously worked from home due to COVID-19 and this would be reasonable to continue.
  1. [8]
    The appeal is made pursuant to s 197 of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') by the Queensland Industrial Relations Commission.
  1. [9]
    Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[2] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [10]
    I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[3] An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[4]
  1. [11]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

The decision

  1. [12]
    In the decision, the decision maker advised the Appellant that he was to be suspended from duty without normal remuneration and provided the following reasons in support of the decision:

Consideration of suspension without normal remuneration

The nature of the discipline matter against you

  • In your response, you appropriately concede that the charges against you are serious, As I have noted, in my view, noting the number and nature of the charges (including five counts of sexual assault, one count of entering a dwelling with intent and one count of deprivation of liberty), and the number of complainant's involved (three, noting it does not appear to be suggested that the complainants are known to each other, or were previously known to you), the charges against you are of the utmost seriousness.
  • Throughout your Response, you have made various submissions regarding the test in Briginshaw, the presumption of innocence, and that there have been no adverse findings BR v State of Queensland (No. 2) [2022] QIRC 154against you. It is important to note however that I am not required, nor is it appropriate for me, to determine whether you engaged in the conduct the subject of the criminal charges in determining whether to suspend you from duty without remuneration. The decision to suspend you from duty (whether with or without pay) should not be conflated with the commencement of a disciplinary process pursuant to Chapter 6 of the Act. Rather, suspension is an administrative action, taken for administrative necessity, and is not disciplinary action (see clause 1.2 of Directive 16/20). Further, in the event your employment is not ultimately terminated following a formal discipline process, you are entitled to be reimbursed your normal remuneration from the date of your suspension without pay (see clause 6.6 of Directive 16/20).
  • I confirm that my decision does not interfere with the presumption of innocence which applies in all criminal matters before the court. I have made no adverse findings against you in respect of your alleged conduct, and I draw no adverse inference in relation to the charges. To be clear, I have not made any determination regarding the veracity of the conduct the subject of the criminal charges against you. A decision to suspend you from duty, or to suspend you from duty without normal remuneration, does not mean that I have denied you the presumption of innocence, or failed to afford you procedural fairness regarding the criminal charges, or mean that I have made any assessment of the veracity of evidence in respect of the allegations (whether in accordance with the test in Briginshaw or otherwise).
  • BR v State of Queensland (No. 2) [2022] QIRC 154You have also made submissions that the charges arise in a private context and therefore there is no nexus to your employment and cannot be extrapolated to ground any reasonable concern about our ability to undertake your role requirement. However, s 187(1)(b) of the PS Act specifically provides grounds for discipline against a public service employee where they have engaged in misconduct in a private capacity, namely BR v State of Queensland (No. 2) [2022] QIRC 154inappropriate or improper conduct in a private capacity which reflects seriously and adversely on the public service within the meaning of s 187(4)(b) of the Act. In your Response, you submit that there is no reasonable prospect of the public losing confidence in the Department due to the suppression of your identity. You say the public cannot be expected to lose confidence in the Department if it is not known you work for the Department.
  • The mere fact that your identity is not currently known, or that criminal charges are not in the public domain, is not relevant to whether the conduct reflects seriously and adversely on the public service. The recent public service appeal decision of Hutchison v State of Queensland [2021] QIRC 317 deals with misconduct in a private capacity and notes, relevantly that:

Section 187(4)(b) of the PS Act describes conduct that reflects seriously and adversely on the public service. There is nothing in the meaning listed in the PS Act that required that the conduct has been published or is widely known. It is not necessarily the publicising of the conduct that is the problem, it is the fact of the conduct itself. It is enough that the nature of the conduct is such that it reflects seriously and adversely on the public service.

  • In any event, this is not a situation in which the matter is not in the public domain or where your employment in the Queensland public service is not known publicly. Notwithstanding the suppression of your name from publication, or that the Department has not been named (noting your employer is the State of Queensland), media reports have identified you as a "long-term Queensland government employee" when discussing the criminal charges.
  • I do not therefore consider the fact that the allegations against you arise in a private capacity are sufficient to outweigh the extremely serious nature of the allegations against you, in determining whether you should be suspended without remuneration.

Any factors not within the control of the Department preventing the timely conclusion of any discipline process

  • I note that you concede that the criminal justice process which is now underway will be protracted, and that this is outside the control of the Department and will delay the conclusion of any discipline process.
  • Whilst you state that you are entitled to the presumption of innocence and that you are not alleged to have committed any offence related to your employment, this is not determinative of my decision as to whether your suspension, which is likely to continue for a significant and protracted period of time, should appropriately continue to be paid out of taxpayers' funds. As I have noted above, in reaching a decision as to whether suspension should be on normal remuneration, I am not required, nor is it appropriate, for me to make an assessment of the evidence against you or to determine whether any allegations against you are capable of substantiation.
  • I am therefore satisfied that there are factors which are not within the control of the agency, namely the outstanding criminal proceedings, which are preventing a timely conclusion of a discipline process.

The public interest of the employee remaining on suspension with remuneration

  • BR v State of Queensland (No. 2) [2022] QIRC 154You submit that, whilst it is understandable that the public would have some reticence to endorse extended periods of suspension with remuneration, balanced against this is the public interest in giving proper weight to the Human Rights Act and ensuring that employees are not arbitrarily placed out of work despite having no adverse findings against them. You also say there is a public interest in the continued remuneration of an employee who has not had any adverse finding made against him.
  • I reiterate however the comments I have made above that it is not necessary, in considering whether to suspend an employee on normal remuneration, that there be adverse findings against the employee. It is not in dispute that there are serious criminal charges against you on foot, and that the criminal proceedings in relation to those charges are likely to be protracted and are outside the control of the Department.
  • Having regard to my obligations under the Financial Accountability Act 2009 regarding the management and appropriate expenditure of public resources, I do not consider it is an appropriate use of public monies for you to remain on suspension with remuneration until the criminal charges against you have been brought to a conclusion. I therefore do not consider, as you suggest, that the public interest in the continued remuneration of an employee who has not had any adverse finding made against him outweighs my obligation to ensure the appropriate expenditure of public funds. Further, as I have noted above, in the event the allegations against you do not ultimately result in the termination of your BR v State of Queensland (No. 2) [2022] QIRC 154employment on discipline grounds, you will be reimbursed for any loss of remuneration during the period of your suspension without pay.
  • Taking into account the seriousness and nature of the charges against you, as well as my responsibilities regarding the management of public resources, I do not consider it is an appropriate use of public monies for you to remain on suspension with remuneration until the criminal charges against you have been brought to a conclusion.
  • Further, and significantly, the criminal offences may seriously diminish the public's confidence in the Department if you are not suspended from duty without normal remuneration whilst the criminal charges are outstanding.
  • I have taken into account your length of employment with the Department, being in excess of eight years and your otherwise unblemished work history. I do not however consider that these factors outweigh the fact that you are subject to serious outstanding criminal charges.
  • I have also considered very seriously the financial hardship you may suffer (although this has not been raised by you in your submissions) if you are suspended without normal remuneration. However, I note that you are conducting your own cleaning and gardening business, in which you perform duties and also appear to engage others to perform duties on behalf of your business, and that you are able to obtain income from this business during the course of your suspension without remuneration. I do not consider any financial impact upon you by my decision to suspend you without normal remuneration is sufficient to outweigh the fact that you are subject to serious criminal charges which, if proven, may amount to misconduct in an official capacity. The Act and Directive 16/20 expressly contemplate that a suspension may be without normal remuneration in certain circumstances; and, in my view, it is circumstances such as those which currently exist (namely a potential discipline process which cannot proceed prior to serious criminal charges being finalised) in which suspension without normal remuneration is appropriate.
  • Accordingly, pursuant to section 137(4) of the PS Act, I have determined that it is not appropriate for you to be paid normal remuneration during your suspension, having regard to the nature of the discipline to which you are liable.

  1. [13]
    The decision maker also considered the effects of the decision on the Appellant's human rights as follows:

I acknowledge that my decision to continue your suspension and to suspend you from duty without normal remuneration may potentially impact on your human rights including the right to privacy and reputation, which extends to protect professional relationships and reputation and the right to participate in public life (through employment in the public service).

However, I consider any limitation is demonstrably justified. This is because in my view the public interest in ensuring consideration is given to suspending employees without normal remuneration where there are factors outside of the Department's control impacting on its ability to progress allegations against an employee, (such as serious outstanding criminal charges), outweighs the limited potential impact on your human rights at this time. Further, in the event that the criminal charges do not ultimately lead to your termination, you will be reimbursed for any lost remuneration arising from your suspension without remuneration. I also note that you have secondary employment which is providing you with income during the course of your suspension without pay. As I have noted above, suspension is an administrative action taken and is not discipline or taken as a form of punishment. Finally, for the reasons set out above, I do not accept your submissions that a decision to suspend you means that your entitlement to the presumption of innocence in respect of the criminal charges against you has been compromised, or that I have made any determination as to the veracity of the allegations against you.

Relevant legislation and Directive

  1. [14]
    Section 194 of the PS Act provides for decisions against which appeals may be made and relevantly provides as follows:

194 Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions –

(bb) a decision to suspend a public service employee without entitlement to normal remuneration under section 137 (a suspension without pay decision);

  1. [15]
    Section 137 of the PS Act provides for the suspension of a public service employee as follows:

137  Suspension

  1. (1)
    The chief executive of a department may, by notice, suspend a person from duty if the chief executive reasonably believes—
  1. (a)
    for a public service officer—the proper and efficient management of the department might be prejudiced if the officer is not suspended; or
  2. (b)
    for a public service employee—the employee is liable to discipline under a disciplinary law.
  1. (2)
    The notice must state—
  1. (a)
    when the suspension starts and ends; and
  2. (b)
    whether the person is entitled to remuneration for the period of the suspension; and
  3. (c)
    the effect that alternative employment may, under subsection (5), have on any entitlement to remuneration.
  1. (3)
    However, before suspending the person, the chief executive must consider all reasonable alternatives, including alternative duties, a temporary transfer or another alternative working arrangement, that are available to the person.
  2. (4)
    A public service employee is entitled to normal remuneration during a suspension, unless—
  1. (a)
    the person is suspended under subsection (1)(b); and
  2. (b)
    the chief executive considers it is not appropriate for the employee to be entitled to normal remuneration during the suspension, having regard to the nature of the discipline to which the chief executive believes the person is liable.

  1. (9)
    In suspending a public service employee under this section, the chief executive must comply with—
  1. (a)
    the principles of natural justice; and
  1. (b)
    this Act; and
  1. (c)
    the directive made under section 137A.
  1. [16]
    Section 187 of the PS Act sets out the grounds for discipline and disciplinary action generally as follows:

187 Grounds for discipline

  1. (1)
     A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. (a)
    engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  1. (b)
    been guilty of misconduct; or
  1. (c)
    been absent from duty without approved leave and without reasonable excuse; or
  1. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
  1. (e)
    used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or

(ea)contravened, without reasonable excuse, a requirement of the chief executive under section 179A(1) in relation to the employee’s appointment, secondment or employment by, in response to the requirement—

  1. (i)
    failing to disclose a serious disciplinary action; or
  1. (ii)
    giving false or misleading information; or
  1. (f)
    contravened, without reasonable excuse, a provision of this Act; or
  2. (g)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

  1. [17]
    Suspension (Directive 16/20) ('Directive 16/20') commenced operation on 25 September 2020, and amongst other things, describes the circumstances in which a chief executive may decide a public service employee is not entitled to normal remuneration during a period of suspension.
  1. [18]
    Clause 5 of Directive 16/20 provides for suspension of a person from duty in the following terms:

5  Suspension considerations

5.1  Suspension

  1. (a)
    Section 137 of the PS Act provides that the chief executive of a department may, by notice, suspend a person from duty if the chief executive reasonably believes:
  1. (i)
    For a public service officer- the proper and efficient management of the department might be prejudiced if the officer is not suspended
  2. (ii)
    for a public service employee - the employee is liable to discipline under a disciplinary law .
  1. (b)
    Section 137(2) provides that suspension notice must state:
  1. (i)
    when the suspension starts and ends
  2. (ii)
    whether the person is entitled to remuneration for the period of the suspension; and
  3. (iii)
    the effect that alternative employment may, under subsection 137(5) have on any entitlement to remuneration.

Suspension notices must state an end date or express the period of the suspension in terms of a specified number of weeks or months. It is not sufficient to state that suspension will end by reference to events, such as ‘until this disciplinary process is finalised’, or to state that the suspension will continue until ‘otherwise determined’.

  1. (c)
    Section 137(8) provides that the chief executive may cancel a suspension at any time.

5.2  Obligation to consider all reasonable alternatives

  1. (a)
    Section 137(3) of the PS Act provides that a chief executive must consider all reasonable alternatives before suspending an employee.
  2. (b)
    The alternative duties do not have to form part of an established role and can be outside the employee’s usual place of work.
  3. (c)
    Employers are required to document and provide to the employee what duties or other options had been identified and considered, including any reason why the employee could not undertake those alternative options. This could include:
  1. (i)
    temporary transfer to alternative duties (either in the employee’s workplace or at another workplace)
  2. (ii)
    directing the employee to work under close supervision or with another employee
  3. (iii)
    asking the employee if they wish to access accrued recreation and/or long service leave (access to accrued leave is at the discretion of the employee).
  1. [19]
    Clause 6 of Directive 16/20 provides for suspension of an employee from duty without remuneration in the following terms:

6.  Suspension without remuneration

6.1  Section 137(4) of the PS Act provides that the chief executive may decide that normal remuneration is not appropriate during a period of suspension where the employee is a public service employee liable to discipline.

6.2  A decision that normal remuneration is not appropriate during the suspension will usually occur after a period of suspension with remuneration but may be made from the start of the suspension.

6.3  In deciding that normal remuneration is not appropriate, the factors the chief executive is to consider include:

  1. (a)
    the nature of the discipline matter
  2. (b)
    any factors not within the control of the agency that are preventing the timely conclusion of the discipline process
  3. (c)
    the public interest of the employee remaining on suspension with remuneration.

6.4  A decision to suspend an employee without remuneration is subject to the principles of natural justice. Natural justice is the right to be given a fair hearing and the opportunity to present one’s case, the right to have a decision made by an unbiased or disinterested decision maker and the right to have that decision based on logically probative evidence1. As part of the suspension process:

  1. (a)
    The employee must be given the opportunity to respond to the proposed suspension without remuneration prior to the decision being made by the delegate. This can occur through a ‘show cause’ process at the time of notification of the initial suspension on normal remuneration, or at any subsequent stage during the suspension.
  2. (b)
    The employee is to be provided with written notice, including the particulars required by section 137 of the PS Act, and reasons for the decision that suspension is without normal remuneration.
  3. (c)
    The chief executive must provide the employee with a minimum of 7 days from the date of receipt of a show cause notice to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice if there are reasonable grounds for extension.
  4. (d)
    If the employee does not respond to a show cause notice or does not respond within the nominated timeframe in clause 6.4(b) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.

Whether the decision was fair and reasonable

  1. [20]
    In this appeal, I must determine whether the decision to suspend the Appellant from duty without normal remuneration was fair and reasonable.
  1. [21]
    The Appellant's grounds of appeal are encompassed in his written submissions and may be summarised as follows:
  1. (a)
    the proper and efficient management of the Department would not be prejudiced if the Appellant was not suspended without remuneration ('Contention One');
  1. (b)
    the Appellant is not 'liable to discipline' under any disciplinary law ('Contention Two');
  1. (c)
    the Respondent failed to explore alternative duties ('Contention Three');
  1. (d)
    it is inappropriate to suspend the Appellant without normal remuneration as there is no causal nexus between the alleged offending conduct and the workplace ('Contention Four');
  1. (e)
    the decision is legally unreasonable ('Contention Five'); and
  1. (f)
    the Appellant was denied procedural fairness ('Contention Six').

Contention One

  1. [22]
    The Appellant argues that the management of the Department would not be prejudiced if he were not suspended without remuneration.
  1. [23]
    In support of Contention One, the Appellant relies on Mazza v Stewart (Commissioner of Police) & Anor[5] ('Mazza'). In Mazza, the applicant, a constable employed by the Queensland Police Service, made an application for a statutory order of review and an order of review of the decision of the second respondent to suspend him from duty as a police officer and a further decision that the applicant was not entitled to his salary and allowances whilst suspended from duty.
  1. [24]
    The relevant decisions in Mazza were considered within the legislative framework of the Police Service Administration Act 1990 (Qld).
  1. [25]
    The Appellant refers to the following passage from Mazza, which identifies the basis upon which the decision to suspend without remuneration was made:

[37] The second respondent’s decision to suspend the applicant without salary and allowances was made on the basis that there was an incompatibility between the applicant’s conviction for serious criminal offences resulting in the death and serious injury of motorists as a consequence of his conduct whilst on duty as a road patrol officer and the maintenance of confidence in the Queensland Police Service

  1. [26]
    The Appellant seeks to rely on the above passage from Mazza, to argue,[6] in the circumstances of his matter, that 'there is no incompatibility with the conduct of the Appellant and his role or functions with the Respondent because he has not been convicted of any offence, and he is entitled to the presumption of innocence until such a conviction. The only logical inference that can be drawn from the Respondent's decision to suspend the Appellant without remuneration is the erroneously formed belief that the Appellant is guilty of the alleged conduct.'
  1. [27]
    This argument fails to distinguish between the reasons given for the decision in Mazza and the reasons given by the decision maker in the decision the subject of the appeal.
  1. [28]
    Relevantly, the basis for the decision to suspend without remuneration in Mazza was that it was considered that there was an incompatibility between the applicant's convictions of serious criminal offences and the maintenance of confidence in the Queensland Police Service. That is not the basis upon which the decision in this appeal was made.
  1. [29]
    In this matter, the decision to suspend the Appellant without normal remuneration was made in accordance with s 137(1)(b) and ss 137(4)(a) and (b) of the PS Act on the basis that it was determined that the Appellant is liable to discipline under a disciplinary law and that it was not appropriate for the Appellant to be entitled to normal remuneration. Accordingly, this matter is distinguishable from Mazza as the decision in Mazza and in this matter were made for separate and distinct reasons.
  1. [30]
    I do not accept the Appellant's submission that the only logical inference to be drawn from the Department's decision to suspend the Appellant without remuneration is it erroneously formed a belief that the Appellant is guilty of the alleged conduct.
  1. [31]
    For reasons that I will expand upon further under the heading Contention Two, determining that a public service employee is liable to discipline under a disciplinary law does not equate to a determination that the public service employee is guilty of the alleged conduct.

Contention Two

  1. [32]
    The second contention raised by the Appellant is that he is not 'liable to discipline' under any disciplinary law, as there has been no determination that he is guilty of the criminal conduct alleged. The Appellant further contends that it is not fair or reasonable for the Department to punish the Appellant for unproven and alleged criminal conduct that has no nexus with his employment. The Appellant argues that such a 'punishment' undermines the criminal justice system, is contrary to the public interest and breaches the Appellant's human rights.
  1. [33]
    In this regard, the Appellant refers to the Human Rights Act 2019 (Qld), which he states is modelled on Article 14(2) of the International Covenant on Civil and Political Rights which provides that the right of a person charged with a criminal offence is to be presumed innocent until proven guilty according to law. The Appellant contends that this reflects the common law principle that a person charged with a criminal offence must be presumed innocent until proven guilty and in this regard relies on Lee v New South Wales Crime Commission.[7]
  1. [34]
    Relevantly, the decision maker does not seek to determine whether the Appellant is guilty of the alleged conduct. The approach taken by the decision maker is addressed in the decision in the following terms:
  • I confirm that my decision does not interfere with the presumption of innocence which applies in all criminal matters before the court. I have made no adverse findings against you in respect of your alleged conduct, and I draw no adverse inference in relation to the charges. To be clear, I have not made any determination regarding the veracity of the conduct the subject of the criminal charges against you. A decision to suspend you from duty, or to suspend you from duty without normal remuneration, does not mean that I have denied you the presumption of innocence, or failed to afford you procedural fairness regarding the criminal charges, or mean that I have made any assessment of the veracity of evidence in respect of the allegations (whether in accordance with the test in Briginshaw or otherwise).
  1. [35]
    As is clear from the above extract of the decision, the decision maker did not make a finding as to whether the Appellant is guilty of the alleged conduct.
  1. [36]
    A determination that the Appellant is 'liable to discipline under a disciplinary law' is distinct from a determination that the Appellant is guilty of the alleged offences. The decision does not seek to interfere with the Appellant's right to be presumed innocent until proven guilty according to law.
  1. [37]
    In this matter, the decision maker determined that '[h]aving regard to the information currently before me in relation to the criminal charges against you, I reasonably believe you are liable to discipline under a disciplinary law in relation to the alleged conduct the subject of the criminal charges against you, namely misconduct in a private capacity within the meaning of ss 187(1)(b) and 187(4)(b) of the Act.'
  1. [38]
    As is stated by the decision maker, the words 'liable to discipline' in s 137 of the PS Act do not mean that the decision maker found that the Appellant engaged in the alleged conduct. The Department submits that, the words 'liable to discipline' should be read to mean 'subject to the probability of discipline'.
  1. [39]
    Relevantly, s 137(1)(b) of the PS Act refers to the chief executive holding a 'reasonable belief' that the employee is liable to discipline under a disciplinary law. The power to suspend arises when there is a reasonable belief that a breach of a disciplinary law may have occurred. That provision does not require any positive finding that circumstances exist that assume disciplinary action will be taken. The facts referred to by the decision maker that informed the reasonable belief that the Appellant is liable to discipline under a disciplinary law include the criminal offences with which the Appellant has been charged and the Appellant's responses provided during the course of the show cause process.
  1. [40]
    Having regard to the information before the decision maker, I consider that it was available on the evidence before the decision maker to form a reasonable belief that the Appellant is liable to discipline under a disciplinary law.

Contention Three

  1. [41]
    The Appellant contends that the Department could have reasonably facilitated alternative duties or working arrangements for the Appellant. The Appellant argues that the Department's failure to explore such options was unfair and unreasonable.
  1. [42]
    The decision set out the decision maker's reasons as to why no alternative positions had been listed as having been considered by the decision maker at the time the Appellant was suspended. The reasons provided by the decision maker were provided in response to the submissions made by the Appellant. Essentially, the decision maker determined that the Appellant not be considered for alternative duties on the basis of the nature and seriousness of the criminal offences with which the Appellant had been charged and that to do so would not be in the public interest.
  1. [43]
    However, the decision which is the subject of this appeal is not the decision to suspend the Appellant on normal remuneration which was made in November 2021. The decision to suspend the Appellant on normal remuneration is the decision which determined that the Appellant not be provided with alternative duties. Pursuant to s 195 of the PS Act, such a decision is not one which appeals may be made against.[8]
  1. [44]
    Accordingly, I do not consider that Contention Three forms a basis to conclude that the decision was not fair and reasonable.

Contention Four

  1. [45]
    The Appellant contends that it was not appropriate that he be suspended without remuneration as there is no causal nexus between the workplace and the alleged offending conduct.
  1. [46]
    The Appellant states that he concedes that the courts have upheld decisions where employees have been suspended without remuneration pending criminal matters.[9] The Appellant argues, however, that those matters are able to be distinguished from his matter on the basis that in those cases, there is a causal nexus between the offending conduct and the workplace and the performance of the employee's duties, and that the employee would be subject to disciplinary action under the PS Act regardless of whether the criminal proceedings continued or not.
  1. [47]
    Clause 6.3 of Directive 16/20 sets out the factors that the chief executive is to consider when determining that suspension on normal remuneration is not appropriate as follows:
  1. (a)
    the nature of the discipline matter
  2. (b)
    any factors not within the control of the agency that are preventing the timely conclusion of the discipline process
  3. (c)
    the public interest of the employee remaining on suspension with remuneration.
  1. [48]
    The Department summarises, in its submissions, how these factors were dealt with in the decision as follows:
  1. (a)
    The criminal charges against [the Appellant] are serious (which he concedes).
  1. (b)
    Whilst the charges arose in a private context, s 187(1)(b) of the PS Act specifically provides grounds for discipline against a public service employee where they have engaged in misconduct in a private capacity, namely inappropriate or improper conduct in a private capacity which reflects seriously and adversely on the public service within the meaning of s 187(4)(b) of the PS Act.
  1. (c)
    Whilst [the Appellant] contends that there is [sic] no reasonable prospect of the public losing confidence in the Department due to the suppression of his identity, the mere fact that his identity is not currently known, or that criminal charges are not in the public domain, is not relevant to whether the conduct reflects seriously and adversely on the public service. References was given to the recent public service appeal decision of Hutchison v State of Queensland [2021] QIRC 317.
  1. (d)
    The criminal justice process which is now underway will be protracted, and this is outside the control of the Department and will delay the conclusion of any discipline process (which [the Appellant] concedes).
  1. (e)
    The Decision Maker’s obligations under the Financial Accountability Act 2009 regarding the management and appropriate expenditure of public resources. Namely, she did not consider it is an appropriate use of public monies for [the Appellant] to remain on suspension with remuneration until the criminal charges against him had been brought to a conclusion. Further in the event the allegations against [the Appellant] do not ultimately result in the termination of his employment on discipline grounds, he will be reimbursed for any loss of remuneration during the period of his suspension without normal remuneration.
  1. (f)
    The financial hardship [the Appellant] may suffer (although this was not raised by him in his submissions). However, [the Appellant] is conducting his own cleaning and gardening business (which has been declared) and is able to obtain income from this business during the course of his suspension without remuneration.
  1. [49]
    The decision addressed each of the factors in cl 6.3 of Directive 16/20 in some detail and I am satisfied that they were considered by the decision maker.
  1. [50]
    Ultimately, it is not necessary to establish that there is a causal nexus between the workplace and the alleged offending conduct to establish a ground for discipline in accordance with the PS Act.
  1. [51]
    Relevantly, s 187(1)(b) of the PS Act provides that a ground for discipline against a public service employee exists where they have engaged in misconduct in a private capacity, namely inappropriate or improper conduct in a private capacity which reflects seriously and adversely on the public service within the meaning of s 187(4)(b) of the PS Act. Accordingly, the provisions of the PS Act do not require there to be a causal nexus between the alleged conduct and the employment for a ground of discipline to exist.
  1. [52]
    I am satisfied that the decision maker considered the Appellant's submissions with respect to the matters raised by Contention Four in the decision, and, ultimately determined, having regard to s 187(1)(b) of the PS Act, that a public servant's inappropriate or improper conduct in a private capacity, which reflects seriously and adversely on the public service, may be a ground for discipline.

Contention Five

  1. [53]
    The Appellant contends that the decision is legally unreasonable because the decision 'lacks an evident and intelligible justification'.
  1. [54]
    Relevantly, the Appellant contends:
  1. 30.
    The Appellant submits that the Respondent has made a decision to suspend him without remuneration based solely on the hearsay and untested representations contained in the QP9 and the bench charge sheets for the alleged conduct. This is not probative evidence and it is not a fair or reasonable basis upon which the decision could be made.
  1. [55]
    The Appellant's submissions are premised on the decision maker having placed disproportionate weight on the possibility that the Appellant be found guilty of the alleged conduct and argues that the Department sought to justify the decision to suspend the Appellant without normal remuneration in order to protect the public interest.
  1. [56]
    I do not accept the Appellant's submissions in this regard. The decision sets out that the decision was made pursuant to ss 137(1)(b) and 137(4) of the PS Act on the basis that the decision maker had formed a reasonable belief that the Appellant is liable to discipline under a disciplinary law.
  1. [57]
    For the reasons referred to above, I consider that there was a factual basis for the decision maker to form such a reasonable belief. Accordingly, I do not consider that the decision lacked an evident or intelligible justification.

Contention Six

  1. [58]
    Finally, the Appellant contends, for reasons similar to those relied on by the Appellant with respect to Contention Five, that he was denied natural justice as the decision was not based on logically probative evidence. The Appellant points to what he considers was the decision maker's reliance on the 'hearsay and untested representations contained in the QP9 and the bench charge sheets' to make the decision.
  1. [59]
    The Department responds by noting that the Appellant failed to provide copies of the bench charge sheets but did confirm that it had regard to the QP9 in considering the matter.
  1. [60]
    The QP9 appears to have been relied on by the decision maker to confirm that the Appellant had been charged with offences and the nature of the offences that the Appellant had been charged with. The fact that the Appellant has been charged with the offences is not a fact in dispute. This fact is part of the factual sequelae relied on by the decision maker when forming a reasonable belief that the Appellant is liable to discipline under a disciplinary law.
  1. [61]
    The Appellant had knowledge of the contents of the QP9 as he provided the QP9 to the Department. Further, the Appellant was put on notice that the Department was considering whether to suspend him without remuneration. The Appellant was provided with an opportunity to respond to the show cause notice and provided a written response. I am satisfied that the decision maker had regard to the Appellant's response when determining the matter.
  1. [62]
    I am not satisfied that the Appellant has established that he was denied natural justice on the basis that the decision was not based on logically probative evidence.

Order

  1. [63]
    For the foregoing reasons, I am not satisfied that the Appellant has established that the decision is not fair and reasonable.
  1. [64]
    Accordingly, I make the following order:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Footnotes

[1] The identifying information of the Appellant has been withheld by an order of the Queensland Industrial Relations Commission issued on 22 April 2022. See BR v State of Queensland [2022] QIRC 146.

[2] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

[3] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[4] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

[5] [2017] QSC 43.

[6] Appellant submissions filed on 9 March 2022, [18].

[7] [2013] HCA 39; 251 CLR 196,[1], [24] and [174].

[8] See Public Service Act 2008 (Qld), s 194(1)(bb).

[9] Hurley v Stewart & Anor [2016] QSC 154.

Close

Editorial Notes

  • Published Case Name:

    BR v State of Queensland (No. 2)

  • Shortened Case Name:

    BR v State of Queensland (No. 2)

  • MNC:

    [2022] QIRC 154

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    06 May 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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